Is anyone impersonating a physician at your hospital? (Hospital Law Case of the Month).

CASE ON POINT: Russell v. Univ. of Cincinnati Hosp., 2002 WL31111848 N.E.2d-OH

ISSUE: Time and time again we read of instances, in which imposters pose as physicians. Often they do so without raising any suspicions from their colleagues or patients. However, what if there is an impostor posing

CASE FACTS: The University of Cincinnati (UC) operates a medical school as well as University of Cincinnati Hospital (UC Hospital). In 1991, David Russell, Lori Riddle, and Robert Heffern were all examined at UC Hospital by a man whom they knew as Dr. Thomas West, and who all believed to be a physician. However, West was not a physician and had been convicted of several crimes related to his impersonating a physician at the hospital, including, inter alia, practicing medicine without a license and battery. On March 3, 1998, David Russell brought suit against UC Hospital in the Ohio Court of Claims. Heffern and Riddle also filed suit, and all three suits were subsequently consolidated. The gravamen of the plaintiffs' actions was that UC Hospital negligently provided West with access to its facilities, including its emergency department, and examination rooms, and thus, gave West the opportunity to examine the plaintiffs. The matter proceeded to trial before the Ohio Court of Claims which rendered a decision in favor of all three plaintiffs. The Court of Claims concluded that the plaintiffs wee business invitees of the hospital. It also concluded that the hospital breached a duty of ordinary care owed to the plaintiffs, and that hospital staff were negligent in implementing security policies and procedures. The court further found that the plaintiffs were negligent in allowing West to perform medical services. Specifically, the court found that the plaintiffs' own negligence was responsible for 40 percent of their damages, while the hospital's negligence was responsible for 60 percent of the plaintiffs' damages. The court ultimately awarded $200,000 in total damages to Riddle, $125,000 to Russell, and $100,000 to Heffern. However, the court then reduced each of the awards by 40 percent. The hospital appealed.

The Court of Appeals of Ohio reversed the trial court's decision and remanded the case instructing the trial court to determined whether UC breached its duty to refrain from wantonly or willfully causing injuries to the plaintiffs. Although the court's order of remand did not instruct the trial court to consider whether the defendant's conduct was reckless as well as wanton and willful, the plaintiffs did not seek reconsideration of or otherwise object to that order. The plaintiffs' appeal to the Ohio Supreme Court was denied. On remand, the trial court concluded that the hospital had not breached the duty owed to the plaintiffs and subsequently rendered judgment in favor of the hospital. The plaintiffs filed a motion for a new trial, judgment notwithstanding the verdict (JNOV), and for reconsideration arguing, for the first time, that the court should have also specifically considered whether the hospital's conduct was reckless. The plaintiffs' motions were denied. The plaintiffs appealed.

COURT'S OPINION: The Court of Appeals of Ohio affirmed the judgment of the lower court. The court held, inter alia, that the trial court correctly followed the appellate court's order.

LEGAL COMMENTARY: Hospital security should be uppermost in the minds of those responsible. Today, more than ever before, hospital authorities should be extraordinarily vigilant to ensure that no unauthorized personnel whether physicians, nurses, medical techs, lab workers, or janitors are allowed unauthorized access. Hospitals should adopt specific policies and implement specific security protocols to ensure the safety of all patients and personnel within hospitals and their environs. All hospital personnel should be alert to the fact that if someone does not have their access card they may not want to facilitate that person's access unless they are absolutely positive of his or her identity and that he or she has a right to access. All too often, we are quick to use our security cards to access secure areas and nilly willy allow others to walk through doors open by virtue of our own access cards. How simple it is to anyone so disposed to wait near secured doors and just "walk" right in. Access to identification badges and lab coats, etc. should be strictly controlled. All hospital personnel should be notified to be vigilant in this regard.

A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Rhode Island law firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writing as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.